Opinion
NN xxxx/12
04-10-2015
In the Matter of . Shina R. (DOB 2/6/2007), A Child Under Eighteen Years of Age . Alleged to be Neglected by Jeanette R., Respondent.
For the Administration for Children's Services: Jamie Spillane, Esq. Bronx Family Court Legal Services NYC Administration for Children's Services 900 Sheridan Avenue, 6th Floor Bronx, New York 10451 For the Respondent Mother: Emma Ketteringham, Esq. Family Defense Practice The Bronx Defenders 360 E. 161st St. Bronx, NY 10451 For the Child: Kristin Kimmel, Esq. Lawyers for Children, Inc. 110 Lafayette Street, 8th Floor New York, New York 10013
For the Administration for Children's Services:
Jamie Spillane, Esq.
Bronx Family Court Legal Services
NYC Administration for Children's Services
900 Sheridan Avenue, 6th Floor
Bronx, New York 10451
For the Respondent Mother:
Emma Ketteringham, Esq.
Family Defense Practice
The Bronx Defenders
360 E. 161st St.
Bronx, NY 10451
For the Child:
Kristin Kimmel, Esq.
Lawyers for Children, Inc.
110 Lafayette Street, 8th Floor
New York, New York 10013
Robert Hettleman, J.
This written decision memorializes the decision I made on the record in Part 16 on December 15, 2014, following a fact-finding trial on the allegations in the petition. For the reasons described on the record on December 15, as well as for the reasons below, I find that the petitioner, the Administration for Children's Services ("ACS"), has proven by a preponderance of the evidence that the subject child, Shina R., is a neglected child as defined in FCA § 1012(f) and was neglected by her mother, Jeannette R.
I. PROCEDURAL HISTORY
On December 27, 2012, ACS filed this Article 10 petition in Bronx Family Court, alleging that the Respondent Mother, Ms. R., neglected the subject child, Shina R. (DOB 2/6/2007) in that:
The respondent did not have stable housing, and refused to enter the shelter system or accept other housing assistance offered by ACS in the preceding six to seven months.
The respondent did not have adequate income to care for Shina, in that she had not received public assistance funds over the prior six months, even though she had been provided with information about public assistance, and she did not have any other stable source of income.
An amended petition was filed in March, 2013, with additional allegations:
That, as a punishment, the respondent forced Shina to strip naked and stand with her arms extended, exposed to others who were in the home.
That respondent emotionally neglected Shina, in that: the respondent told Shina that she ruined the respondent's life and that she wished she had never had her; the respondent shamed the child when the child could not write her name and when the child cried and ran to her for comfort, the respondent told her to stop crying; and Shina reported that when she resided with the respondent, the respondent was always angry that she needed to take care of Shina.
In addition, at the conclusion of fact finding, ACS asked the court to conform the pleadings to the proof to include the following additional allegations that emerged through records and testimony at trial:
That Ms. R. disciplined Shina with a belt on previous occasions, that Ms. R. used marijuana, and that Shina witnessed domestic violence and sexual activity between Ms. R. and her boyfriend.
That Shina appeared "undernourished;" that upon placement in foster care, after two months in her mother's exclusive care, Shina was hungry, dirty, and had bug bites "all over her body."
At all times during the pendency of this action, Shina was placed in foster care in the home of Ms. C.R., who was also the respondent's foster mother until Ms. R. aged out of foster care in June of 2012. The respondent was placed with Ms. C.R. soon after Shina was born, and both mother and child remained in Ms. C.R.'s foster home until Ms. R. left care. Ms. R. initially placed Shina with Ms. C.R. on a voluntary basis in August of 2012. But in December of that year, the original petition for voluntary placement was dismissed by New York County Family Court with a direction that the instant neglect action be filed.
Fact finding commenced on May 4, 2014, and continued on May 12, May 16, July 23, August 6, and October 8, 2014. As noted, I rendered an oral decision on the record on December 15, 2015, and I entered a Dispositional Order in court that day.
II. THE EVIDENCE AT TRIAL
At trial, ACS called (1) Child Protective Specialist Marie Skyers; (2) Shina's former therapist, Dr. Steven Loomis; and (3) Ms. C.R., the respondent's former foster mother, who is now Shina's foster mother as well. In addition, ACS entered into evidence (1) an Oral Transmission Report ("ORT") dated June 25, 2012; (2) foster care agency case records; and (3) Dr. Loomis' curriculum vitae.
a. The ORT
In pertinent part, the ORT, entered into evidence as Petitioner's 1, stated that Ms. R. did not have provisions for the child, had no income, and was verbally abusive toward the child, in that she yelled at her, telling her to shut her mouth, and telling her that Shina had ruined her life.
b. CPS Ms. Skyers
CPS Skyers testified at length to her multiple contacts with Ms. R., starting from the date of the ORT, June 25, 2012. On that day, Ms. Skyers made a home visit to the residence of Ms. R.'s cousin in the Bronx, where Ms. R. and Shina were staying. Ms. Skyers testified that, during a private interview with Shina that day, the child told her that Ms. R. regularly told her to shut up and had hit her on the hand with a belt. At that time, Ms. Skyers observed a mark on Shina's eyebrow and marks on each of her knees, but no injury to either of the child's hands. During that same visit, Ms. R. told Ms. Skyers that she had applied for public assistance but that it had been denied. Ms. R. indicated that her only income came from periodically braiding hair and occasional from help from friends, family members, or Ms. C.R. The respondent also told Ms. Skyers that the cousin, with whom she and Shina were staying, was in the process of moving out of that apartment. Ms. R. acknowledged that she did not know when the move would occur or where she and Shina would reside next. The respondent also conceded to Ms. Skyers that she and the child did not have any housing of their own, but that in addition to staying on occasion with her cousin, Ms. R. and the child sometimes stayed with Ms. R.'s sister in Queens or with the foster mother, Ms. C.R., in Long Island. Ms. R. went on to state that her plan for obtaining housing was to go with Ms. C.R. to the Department of Housing on Long Island in order to enter the shelter system there.
Ms. Skyers' next contact with the respondent was on June 29, 2012, and on that day, Ms. R. told her that she was in the process of getting into a shelter in Long Island. Ms. Skyers asked Ms. R. to contact her with her placement and contact information, and Ms. R. agreed to do so. However, Ms. R. did not contact Ms. Skyers again until July 6, 2012, and Ms. Skyers was unable to contact the respondent in the interim, as she did not have a working telephone number for Ms. R. On July 6, Ms. R. informed Ms. Skyers that she had not, in fact, entered the shelter system, but instead was residing with her sister in Queens. However, Ms. R. said that she did not know the actual address. But the respondent indicated that she was at her sister's home only temporarily and was still planning to enter a shelter. Ms. Skyers asked Ms. R. to contact her with her placement information once she entered the shelter.
Ms. Skyers' next contact with Ms. R. was by telephone on July 10, 2012. On that day, the respondent informed Ms. Skyers that she had still not entered the shelter system but rather had returned to her cousin's home in the Bronx. This was still only temporary, however, and she said she would enter the shelter system on the next day. On July 12, 2012, Ms. Skyers visited Ms. R. and Shina, who were still at the cousin's home in the Bronx. The cousin's apartment appeared sufficient and safe for Ms. R. and Shina, but Ms. R. acknowledged that she could not stay there long-term because her cousin was planning to move out. The respondent indicated that she was going to enter a shelter that day, but she was waiting for her cousin's partner to drive her and the child to the shelter with their belongings. Ms. Skyers suggested to Ms. R. that she take only some of her things to the shelter and go there right away, and that she could come back for the rest later. But Ms. R. declined to do so and chose instead to wait for the ride.
The next contact with the respondent was on July 26, 2012. After being unable to locate Ms. R. and the child for some time, Ms. Skyers returned to Ms. R.'s cousin's home in the Bronx. Ms. R. and Shina were still living there and had not entered the shelter system. On the 26th, Ms. Skyers encouraged the respondent to apply for public assistance so that she could have her own, steady source of income, and Ms. Skyers offered transportation money for Ms. R. to do so. At this time, Ms. R. stated again that she had already been denied public assistance, although at no time did she ever produce any paperwork confirming that she had applied or been denied. And although Ms. Skyers informed her that she could re-apply, Ms. R. never did so. As for housing, Ms. R. informed Ms. Skyers that her newest plan was to have her sister pay for a two-bedroom apartment for Ms. R. and Shina. Ms. Skyers again cautioned the respondent that all of her plans lacked stability and relied too much on others, and that Ms. R. needed her own source of income and her own apartment for herself and Shina.
Nonetheless, on the next day, July 27, 2012, Ms. Skyers accompanied Ms. R. and Shina to enter the shelter system in New York City. But on July 31, 2012, the respondent informed Ms. Skyers that she had left the shelter where they had been placed because she didn't feel comfortable in that placement and felt it would be bad for Shina. Ms. R. said her plan now was to enter the shelter system in Long Island with the assistance of Ms. C.R. Ms. Skyers attempted to call and visit Ms. R. and Shina several times in the days that followed, but she had no further contact with respondent until August 10, 2012. On that day, Ms. R. told Ms. Skyers that she was not in a shelter but rather was staying with a friend in Long Island. Ms. R. refused to provide the address of the friend in order for Ms. Skyers to be able to visit, but the respondent arranged to meet with Ms. Skyers a few days later, back at the cousin's home in the Bronx.
On August 13, 2012, Ms. Skyers again visited the cousin's home in the Bronx, and she reiterated to Ms. R. that her lack of housing stability was not good for Shina. During that visit, Shina told Ms. Skyers that, on the day before — August 12, 2012 — she had witnessed her mother's partner scratch her mother and give her a black eye, although the worker did not see marks on Ms. R. during the visit on the 13th. In Ms. Skyer's further conversations with the respondent that day, Ms. R. described her past history of growing up in foster care, having been diagnosed as retarded at some point, having a mental health history and having seen a counselor at times, and loving her child Shina very much. At the end of the visit, Ms. Skyers suggested that perhaps Ms. C.R. could care for Shina while the respondent got "back on her feet." Ms. R. appeared to agree, albeit reluctantly, as she still cared for Shina and did not want Shina to be in foster care on a long-term basis.
On August 21, 2012, a child safety conference was held, and Ms. C.R. and the respondent were among those in attendance. And at the conference, Ms. R. talked more about her history, including past domestic violence, and stated that she could not adequately take care of Shina at that time. Ms. R. further stated that she did not want to go back to the shelter system and wanted Ms. C.R. to take care of Shina until Ms. R. could get herself together.
Ms. Skyers also testified to multiple additional contacts with the respondent between August and December of 2012, when the petition was filed. As of December 26, 2012, Ms. R. had still not obtained housing or any income, and she had asked that her weekly visits with Shina be reduced to every other week.
c. The Foster Care Agency Case
Redacted case notes from the foster care agency, SCO Family of Services, were entered into evidence as Petitioner's Exhibit 2. In pertinent part, the admissible portions of those records, see People v. Smith, 122 AD3d 446 (1st Dept. 2014) (discussing portions of foster care records admissible under business records exception to the hearsay rule); Matter of Grayson J., 119 AD3d 575 (2nd Dept. 2014) (same), indicate that from the time Shina was officially returned to Ms. C.R.'s care, the respondent only sporadically attended her scheduled visits at the agency and, as testified to by Ms. Skyers, actually asked to reduce the number of visits. The records also note that Ms. R. claimed that she had a lot of phone contact with the child, even though she was not visiting frequently. The records also document Ms. R.'s continued failure to obtain housing or income, despite the agency's efforts to assist her. On multiple occasions, Ms. R. stated that she planned to enter the shelter system, but she did not. The records also indicate a number of instances where the respondent was emotionally or physically abusive toward Shina. For example, the caseworker wrote that during one visit, Ms. R. was "rude to [Shina and] sham[ed] her when she couldn't write her name. [Ms. R.] reprimanded Shina until Shina started to cry. When Shina ran to [Ms. R.] for comfort, Ms. R. told her to stop crying, and offered her very little emotional support." On another occasion, Shina reported to the caseworker that when she and Ms. R. lived together, her mother told her that was she was angry that she had to care for Shina. A different time, Shina told the caseworker that her mother punished her for playing with a lighter by making her strip and beating her, that this happened in the kitchen, and that others were present including her aunt and a man she referred to as "Uncle Ricky."
d. Dr. Loomis
Dr. Stephen Loomis, a psychologist for the foster care agency, testified that he treated Shina for approximately one and a half years. At a session on January 10, 2013, Ms. C.R. reported to him that Shina described an incident where her mother had stripped her naked and beaten her in front of others as a form of punishment. Dr. Loomis then questioned Shina about this in open-ended, broad terms, and Shina repeated those specific allegations to Dr. Loomis. Notably, Shina described the incident again during the subsequent counseling session. Shina also described to Dr. Loomis that this incident made her feel frightened and embarrassed.
e. Ms. C.R.
Finally, Ms. C.R. testified for the petitioner. Ms. C.R. was the respondent's foster mother for many years, and both the respondent and Shina resided together in Ms. C.R.'s home for most of the first six years of Shina's life. Ms. C.R. testified that, on multiple occasions, she observed Ms. R. both threaten to hit Shina with a belt and actually hit her with a belt. She also heard Ms. R. tell Shina to her face that the child was "ruining [her] life," and that the child, often already crying or having been beaten, would continue crying from being spoken to in this way. At these times, Ms. C.R. testified, Ms. R. did not comfort Shina at all. Additionally, Ms. C.R. described that Shina child reported to her being undressed, put up against a wall, and beaten in front of others on one occasion when she was living with Ms. R.
When the respondent aged out of care, Ms. C.R. gave her the option of remaining in her home as a paying tenant, but Ms. R. told Ms. C.R. that she preferred to go live with her boyfriend in the Bronx or with her cousin in Queens. During the two months when Shina was not living with Ms. R. but not in Ms. C.R.'s home, the respondent told Ms. C.R. that she and Shina lived in at least three different places. Ms. C.R. further testified that when the respondent and Shina left her home in June, the child was "okay," but that when Shina returned to Ms. C.R.'s care in August after living from place to place with Ms. R., the child was dirty, malnourished, and had bug bites all over her body. Ms. C.R. also testified that she made numerous efforts to help Ms. R. find income and shelter, including (1) taking her to and enrolling her in a cosmetology school; (2) finding her a job at a beauty salon; and (3) occasionally providing Ms. R. some short-term cash assistance. However, Ms. R. failed to follow through with either the school or the job offer. Ms. C.R. also testified that the respondent missed many visits with the child, or arrived late or ended them early, and that between August and January of 2013, Ms. R. did not visit Shina at all. Ms. C.R. further noted that when Ms. R. did not attend the scheduled visits with Shina, the child would become very upset and "act out."
g. Other Allegations
The petitioner also submitted some evidence about marijuana use by the respondent, as well as domestic violence and sexual activity in front of the child. However, as described below, this Court does not base its finding on these allegations, and thus I will not further summarize that evidence here.
h. The Respondent's Case
The respondent did not call any witnesses, but she did put into evidence (1) the final permanency report from her own foster care placement; (2) records from Nassau County DSS relating to an unfounded case relating to allegations of the respondent hitting Shina with a belt; and (3) a stipulation among parties that an investigation from 2012 was unfounded as to allegations of domestic violence and sexual activity in front of Shina.
The Attorney for the Child did not call any witnesses or put any documents into evidence, and all parties rested.
III. DISCUSSION AND FINDINGS
I found the testimony of the witnesses to be credible. Ms. Skyers was straightforward in her demeanor, knowledgeable about the events she described, and corroborated by other evidence in the case. Likewise, Dr. Loomis was a credible witness. He was corroborated by the other evidence in the case, he had no motive to fabricate about the situation, and he was frank and open about his limited role in this case and about the nature and extent of his conversations with Shina. And finally, Ms. C.R.'s testimony was credible and very persuasive. Indeed, she made clear that she did not wish to testify at all in this case, much less in a manner that might harm or upset Ms. R. Ms. C.R. described, and demonstrated in her demeanor, that she still loved and cared deeply for Ms. R., and she felt that Ms. R. had come a long way as a parent and as a person. Not only did Ms. C.R. lack any incentive to testify falsely or unfairly against the respondent, but her testimony appeared at times quite protective of Ms. R. And finally, Ms. C.R. was also corroborated by the other evidence in the case.
As noted, Ms. R. did not call any witnesses and did not testify herself, and I draw a negative inference against her for her failure to testify at the trial. See, e.g., Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 NY2d 73 (1995).
I am quite mindful of all the challenges that Ms. R. has faced, both as a foster child herself and as a parent. Shina was born when the respondent was only fifteen years old, and Ms. R. was placed, with Shina, with Ms. C.R. when Shina was four months old. Ms. R. (and her sister) stayed there until she aged out of care at age 21. Sadly, despite ACS and the Family Court's efforts, Ms. R. aged out of foster care into homelessness, although she refused the option of remaining in Ms. C.R.'s home and paying rent (notably, Ms. R.'s sister did take advantage of this offer). Through this trial and this case, I heard persuasive arguments as to whether the efforts made by ACS and SCO Family of Services to assist Ms. R. in establishing a stable residence and income were sufficient, as well as about the Ms. R.'s own responsibility for having rejected the advice and assistance of the agencies and Ms. C.R. It is plain that ACS and SCO could have done more — and should have done more — for this young mother, who faced poverty, homelessness, and being a survivor of her own traumatic childhood that resulted in her placement into foster care. Merely trailing her around and repeatedly asking her to enter a shelter hardly constitutes a sufficient support system.
That being said, despite any failings of the agencies involved, Ms. R. was no longer a minor and was now the parent of a young child. She was ultimately responsible for the care of her own child and taking whatever steps were necessary to be able to provide a minimum degree of care. Under the facts of this case, I decline to find that any failings of the agency amount to a complete defense to Ms. R.'s failure to provide a home, an income, and proper care for her child.
In summation, the respondent's attorney made much of the respondent's right to choose to live with relatives rather than enter the shelter system. Also, Ms. Skyers did not find that any of the homes in which Ms. R. and Shina stayed were unsafe or inadequate. However, the facts here are not that Ms. R. chose to reside with one or more relatives as a source of support, but rather that she simply went from place to place with Shina — on a seemingly weekly or sometimes daily basis — knowing that none of these places or situations could possibly accommodate and support her and her child in any meaningful way. Plainly, Ms. R. had no plan of any kind for stable housing, bedding, food, or clothing.
Similarly, while the respondent did some amount of money from braiding hair and received occasional financial support from relatives and from Ms. C.R., it is uncontroverted that this patchwork was not nearly sufficient to provide the basic necessities for Shina. Indeed, when Shina arrived back at Ms. C.R.'s home after a period of being with Ms. R., the child was malnourished and dirty. This was plain and tangible evidence of Ms. R.'s neglect. See generally, Matter of Justin A., 94 AD3d 575 (1st Dept. 2012) (child's significant weight gain when hospitalized indicated that he had not been receiving proper nourishment at home); Matter of Commissioner of Social Services o/b/o Female W., 182 AD2d 589 (1st Dept. 1992) (child gained weight and functioned better in hospital than in care of the respondent). All of this was the gravamen of first petition, and ACS proved by a preponderance of the evidence that respondent neglected Shina by failing to obtain stable and sufficient housing, despite the efforts and the assistance of ACS and the foster care agency. See, e.g., Matter of Alexander L., 99 AD3d 599 (1st Dept. 2012) (neglect found where respondent was repeatedly advised that her unstable living situation was the cause of child's deteriorating condition, but respondent nevertheless refused suitable permanent housing options); Matter of Tia B., 257 AD2d 366 (1st Dept. 1999) (respondent failed to provide adequate shelter and refused assistance in obtaining alternative housing).
Further, ACS proved by a preponderance of the evidence many (but not all) of the additional allegations in the amended petition, establishing an overarching pattern of inadequate supervision, emotional abuse, and at least one instance of excessive corporal punishment — namely, the incident where Ms. R. forced Shina to strip naked and then beat her in front of others. Shina's own statements to others about this incident — made to Ms. C.R. and Dr. Loomis, and to the case worker (as reflected in the case records) — are admissible under FCA §1046(a)(vi)., and I find that they are sufficiently corroborated by other evidence in this case, as required by that subsection. The corroboration requirement is not a heavy one in Article 10 cases, as the statute merely requires "[a]ny other evidence tending to support the reliability of the previous statements ." FCA §1046(a)(vi). See, e.g., Matter of Caitlyn U., 46 AD3d 1144, 1146 (3rd Dept. 2007) ("a relatively low degree of corroborative evidence is sufficient") (citing cases); Matter of Astrid C., 43 AD3d 819,821 (2nd Dept. 2007) ("The rule requiring corroboration is flexible") (citing cases). "The policy served by requiring corroboration of a victim's out-of-court statements in a child protective proceeding is to assure that a fact-finding determination is not being made on the basis of hearsay evidence [17] alone, and the quantum of corroboration is substantially less exacting than that required in criminal cases." Matter of Linda K., 132 AD2d 149, 156 (2nd Dept. 1987) (citations and internal quotations omitted).
Although the amended petition alleged only that Ms. R. had the child strip naked and hold her arms out in front of adults — that is, it did not mention a beating — the facts at trial established that this incident did include a physical beating, and I permitted the oral amendment of the allegations to conform to the proof adduced at trial. FCA §1051(b).
Here, Shina's statements are corroborated by her own statements to other people, see Matter of David R., 123 AD3d 483, 484 (1st Dept. 2014) (while repeated out-of-court statements by the child are not sufficient corroboration on their own to sustain a finding of neglect, they can properly serve to enhance the credibility of the allegations) (citing cases); Matter of Charlie S., 82 AD3d 1248 (2nd Dept. 2011) (consistent statements made to different people, combined with some additional evidence — in that case, a negative inference drawn by the court from the respondent's failure to testify — was sufficient to sustain a finding); by Dr. Loomis' description of the child appearing and feeling shamed by the incident; by the caseworker's observation of the child crying over her treatment by her mother; and by additional incidents of corporal punishment that were reported by the child and witnessed by the foster mother. See David R., 123 AD3d at 484-85 (allegations of excessive corporal punishment properly corroborated by evidence of similar incidents with other children); Matter of Nurridin B., 116 AD3d 770, 771 (2nd Dept. 2014) (corroboration where the respondent admitted to prior incidents of using corporal punishment on child) (citing cases); In re Joshua B., 28 AD3d 759 (2nd Dept. 2006) (corroboration by evidence of similar incidents).
In addition, I find that the mother's actions of punishing Shina by forcing her to strip naked and beating her in front of others amounted to an excessive, degrading, and disproportionate form of discipline, particularly given Shina's age at the time. See generally, In re Rodney C., 91 Misc 2d 677 (Fam. Ct., Onondaga Co., J. McLaughlin (1977)). Under the Family Court Act and the Penal Law, a parent is not prohibited from using physical force to discipline a child. FCA §1012(f)(i)(b); PL §35.10(1). Rather, the standard is whether the punishment is "excessive" or "reasonable." Id. It can be difficult for a court to assess the reasonableness of punishment in a given situation, but the assessment must be based upon all of the facts and circumstances present, including, inter alia, the nature of the punishment, the purported reason for the punishment, the age, maturity and size of the child, the ability of the child to understand or appreciate the punishment, whether a less severe form of punishment would have sufficed, and the effect of the punishment on the child, whether physical or emotional. Rodney C., 91 Misc 2d at 679-80 (citing Restatement on Torts 2d, §150, and cases); In re Peter G., 6 AD3d 201, 206 (1st Dept. 2004) (concurrence, citing Rodney C.); In re Jonathan C., 195 AD2d 554 (2nd Dept. 1993) (citing Rodney C.). Moreover, "force applied . . . primarily for any purpose other than proper training or education of the child or for the preservation of discipline is not privileged." Rodney C., 91 Misc 2d at 680 (quoting Restatement on Torts 2d, §151). "Thus, force administered for the gratification of passion or rage is excessive punishment." Id. (internal quotation and citation omitted). And finally, the absence of a physical injury resulting from a punishment does not preclude a finding of neglect. In re Danielle M., 151 AD2d 240, 242 (1st Dept. 1989) (citing Matter of Tammie Z., 105 AD2d 463, 464 (3rd Dept. 1984)).
This court notes that there was considerable argument at trial over the fact that an investigation of this incident came back unfounded by Nassau County Child Protective Services. This Court is not bound by that administrative investigation and decision; I, as the trier of fact, am required to make this determination.
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In the instant matter, Ms. R. punished Shina by stripping her naked and beating her in front of other adults. At the time of this incident, Shina was only five years old. In combination with Ms. R.'s other demeaning statements to, and about, the child during this period of time, the evidence proves that this was disproportionate, degrading, and done out of a desire to satisfy the respondent's own rage, rather than a reasonable, calculated punishment that communicated discipline to the child in a way that a five year old could understand. It is unclear whether this incident caused any physical injury to Shina, but it scared and shamed this little girl in a manner that far exceeded reasonableness, when a much less severe punishment would have sufficed. This incident alone constitutes neglect under the Family Court Act.
The court also finds credible the testimony that established a pattern of emotional neglect and rejection of the child on behalf of the respondent: e.g., Ms. R.'s statements that she sometimes wished she did not have Shina and that Shina had ruined her life; her negative comments about Shina's abilities; and her failure to visit the child after Shina was again living with Ms. C.R. While such behavior alone may not be sufficient to support a finding of neglect, it was clear from the evidence that, in combination with all of the other evidence in the case, Shina was harmed by this pattern of treatment from her mother. See Matter of Shane T., 115 Misc 2d 161 (Fam. Ct., Richmond Co., J. Leddy (1982)) (respondent repeatedly calling child a "fag" and other homophobic epithets constituted neglect); In re Theresa "CC", 178 AD2d 687, 689 (3rd Dept. 1991) (pattern of emotional abuse by exposing children to violent and inappropriate behavior where evidence that this made the children fearful and distressed).
IV. CONCLUSION
Based on all of the evidence submitted and testimony adduced, I find that Shina is a neglected child as defined in FCA §1012(f). The respondent (1) failed to supply the child with adequate food, clothing or shelter, although financially able to do so, and having been offered financial and other reasonable means to do so; (2) failed to provide Shina with proper supervision and guardianship; (3) used excessive corporal punishment on the child; and (4) emotionally neglected the child.
However, as to the allegations related to marijuana use, engaging in sexual activity in front of the child, or engaging in domestic violence in front of the child, I find that ACS failed to meet its burden required to support a neglect finding.
Dated:____________
Bronx, NY
____________________________
Hon. Robert Hettleman
Family Court Judge, Bronx County